On a Higher Ground:

The Courts and Baseball

The court's decision, at least the way Flood and Miller saw it, should have been easy. In the case, Goldberg presented no revolutionary argument. Flood's lawyers did not call for a radical reinterpretation of the Constitution. They merely asked, in Miller's words, that the court "face up to the logic of its own decision in other cases and begin applying that logic to baseball" (Miller 193). Despite what baseball labor historian John Helyar called "the time-honored tradition of judges losing their judicial bearing under the influence of baseball," Flood and Miller did have some reason to hope (104). Since the Toolson case the court had sided with William Radovich, a football player, in striking down NFL practices counter to anti-trust laws. Yet as soon Justice Harry Blackmun began to read the Court's decision, all in attendance realized the myth of baseball and its seemingly unconstitutional labor practices would remain intact.

Blackmun's decision, more an ode to baseball greatness than a legal document, began with a list of 88 baseball legends, from Cap Anson to Babe Ruth. Before dropping phrases such as "the Sherman Anti-Trust Act" or "the 13th amendment", Blackmun cited "Casey at the Bat" and "Tinker to Evers to Chance." Blackmun capped what Washington Post columnist Shirley Povich called "a long recital about The Game, The Game, The Game, and the Apple Pie Americanism of it," with the court's 5-3 decision against Flood (United States Reports).

With tradition and sanctity alone insufficient reasons for a Supreme Court decision, Blackmun and the majority were forced to turn to a legal rationale for supporting baseball. "The long standing exemption of baseball from the antitrust laws," Blackmun wrote, "is an established aberration" (US Reports). Going on to call baseball's treatment an "anomaly," Blackmun employed an unusually broad version of stare decisis and turned the burden again upon congress, urging them to pass a law regarding baseball's antitrust status. The court, facing an argument that roughly amounted to economic freedom vs. tradition, found an escape route. A Supreme Court that less than two decades ago took on the segregationist South and stood poised to anger much of Christian America with a decision on reproductive rights, refused to address baseball.

The Supreme Court, in terms of baseball awe, placed second only to New York District Court Judge Irving Ben Cooper. Cooper, who handled Flood's earlier trial, amused the courtroom by calling seventh stretches in place of recesses. In his decision, cited in Blackmun's, Cooper stated, "baseball has been the national pastime for over one hundred years and enjoys a unique place in our American heritage.... The game is on a higher ground; it behooves us to keep it there" (US Reports). While Cooper, and later the Supreme Court, seemed to argue baseball's exemption simply because it belonged "on a higher ground," both found ways to escape this quant, romantic brand of jurispudence: Cooper, under Toolson, deferred to the Supreme Court; and the Court to Congress. Cooper, better perhaps even the owners themselves, appeared to view Flood as the potential destroyer of all things good and American. Miller described what he viewed as Flood's racist treatment:

I think Curt Flood on the stand was treated miserably by [Cooper]. He almost taunted him. A judge that showed great respect for almost all witnesses, who were white. From the bench the judge asked Curt Flood, 'this isn't as easy as playing centerfield, is it?' with a sarcastic tone in the middle of a difficult cross examination.

Baseball, almost as old as this country and one of its greatest and most revered institutions, could not and should not be assailed--certainly not by the likes of a black man like Curt Flood.

The arguments in the case mirrored the arguments in the press and reflected the social change sweeping most of the country. Stating that the reserve clause--binding each player for life--amounted to involuntary servitude, Goldberg argued that it violated both antitrust laws and the 13th amendment. Prominent economists supported the claim that the reserve clause worked to prevent a fair market system and severely depress wages. Flood's team continued to accuse baseball of collusion and other illegal labor practices such as blacklisting. Baseball generally responded to Flood's harsh legal claims with rationalizations and talk about the Good of the Game. Baseball lawyers compared Flood's salary to other workers, and stated the reserve clause could not be considered slavery since baseball players could pursue other occupations. More than legal points, however, baseball argued that the end of the reserve clause and the advent of free agency would introduce chaos to the game--officially destroying baseball as we know it and as our fathers and grandfathers knew it (Scully).

Baseball used the testimony of several owners and players in attempt to illustrate how the striking down of the reserve clause would make baseball radically differt. The richest teams would monopolize all the great talent and win all the championships. The best players would change teams every year in search of the best offer. This, Flood's team argued, was capitalism. Largely intimidated by the baseball establishment, few players would risk blacklisting to testify for Flood. Only a handful of former players even dared to tarnish baseball's perfectly clean image. But rising to Flood's defense and testifing in his trial in New York was Jackie Robinson, baseball great and archetypal pioneer. Robinson's stirring testimony greatly touched Flood and many in attendance, but the baseball establishment boosted far greater numbers, picking and choosing players and owners to testify on behalf of the Great Game. Constructing the myth even better than Whitman or Spalding, baseball's defense team mesmerized Blackmun and the majority of the court.

If the courts were determined, if only through their inaction, to preserve the sanctity of baseball, much of the public came to doubt baseball's legal exemption. "Baseball fans were mystified," Time magazine stated. "It was rather like an umpire with one thumb hooked in the air and the other spread out saying, 'You probably should be out but you're safe, I think, kind of.'" The Washington Post more succinctly stated "tradition had once more won out over logic" (qtd. in Miller 194). In his dissent, Justice William Douglas chided the court's "romantic view of a rather dismal business," stating that "baseball is today big business that is packaged with beer, with broadcasting, and with other industries" (US Reports). The majority of the court, however, still shared the pastoral, old fashioned view of baseball--fields carved from the wilderness--that alone could explain baseball's legal exceptionalism.

With the college campuses literally exploding and war protests growing increasingly violent, much of America clinged to what little remained of a nostalgic, pure, and simple past. Baseball provided just this, and not even the Supreme Court could bring itself to demystify baseball. America needed a few myths--where ideals won over fact and dreams over reality--and Curt Flood and the rest of the ballplayers would just have to make do with $90,000 salaries. In a decade dedicated to change, even chaos, America, particularly conservative America, still needed something old fashioned on which to cling. Blackmun, a Nixon appointee wrote the decision, with another Nixon appointee, Chief Justice Rehnquist, providing the crucial support. A line had to be drawn, and conservatives stood their ground with baseball. Pure nostalgia, in small doses at the ballfield, could outweigh even labor rights. After the decision, a despondent Curt Flood made his way out of the courtroom. Newsweek caught up with Flood as he made his way away from the court house. Flustered and pensive, Flood could only remark, "Baby, I gave them one hell of a fight."

Even in Flood's defeat, baseball would never be the same. The Court made clear it had only freed baseball on a technicality and urged congress to take action. Although some of the owners celebrated, most realized a defeat for Flood only slightly postponed the even made inevitable when a player of Flood's caliber brought the case to the Supreme Court. The reserve clause, although still in existence, had little life left. Even the conservative commisioner Kuhn remarked that "change was in the wind" (qtd. in Miller 197). An arbitrator struck down the reserve clause three years later, but Curt Flood would never benefit. Flood, as he had feared from the start, would never play professional baseball again. The former star outfielder faded from the national scene. "As for Flood, 34," the Time article stated. "He is now living somewhere in Europe."